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December 16, 2009

No Cameras Allowed in Prop 8 Trial. Unless They Are.

Update: The Ninth Circuit on Thursday issued a press release saying cameras would be allowed in courts under its jurisdiction on an experimental basis. Does this mean cameras for the Prop 8 case? Well, here's the most interesting sentence in the release:

Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge.

Walker: Camera-shy, yet so photogenic …

Chief judge for the Northern District? That guy over there on the right. We'll have more on CalLaw tonight, and our original post is below.

As of today, cameras will not be permitted to televise the federal challenge to Prop 8. But that may change by the time trial starts next month.

Under local and circuit rules, television cameras aren’t allowed into court, said Northern District Chief Judge Vaughn Walker during a final pretrial conference Wednesday. However, the Ninth Circuit conference passed a toothless resolution a couple years ago supporting the concept in civil bench trials, just like the Prop 8 case. Now, the circuit’s governing council is mulling a pilot program to allow it, which “may be considered in the near future,” Walker said.

Later in the day, Legal Pad just happened to be at Seventh and Mission, chatting with Ninth Circuit Chief Judge Alex Kozinski. So we asked whether the circuit might pass the pilot program in time for the Jan. 11 Prop 8 trial. The normally loquacious Kozinski turned a touch furtive. “I really don’t want to comment,” he said.

En banc review of the recent Ninth decision on the case? Follow the jump.

Walker, for his part, clearly wants to revisit the topic if the circuit signs off. And lawyers representing the same sex couples do, too. “We have a great deal to say about it when it’s appropriate and propitious to do so,” said Ted Olson of Gibson Dunn & Crutcher. The Yes on 8 campaign didn’t weigh in on Wednesday, but it has previously opposed cameras on the grounds that they would subject Prop 8 supporters to public retribution.

In other matters, Walker decided he will hear from all of the anti-gay-marriage experts proffered by the Yes on 8 defendants, and then make decisions as to their credibility after the trial. The same sex marriage plaintiffs had sought to bar some of those academics from testifying at all, saying they were unqualified.

Walker also announced that he received a phone call Wednesday morning from the Ninth Circuit, saying there had been a call to review en banc a recent panel decision on internal Yes on 8 documents. Walker had ordered the campaign to turn over internal communications, but an appellate panel overturned him. Now, apparently, the full Ninth Circuit will take a look at whether the First Amendment protects those papers.

Walker indicated the circuit will make “every effort” to resolve the issue before trial next month. If the appellate court actually acts that fast, it would have to be an all-time record.

Comments

Good question. Walker said he didn't think trial should have to wait for every last document to come in, but I would anticipate a forceful argument from plaintiffs that anything really juicy would affect their strategy. Maybe they'd front load the academic witnesses and such, and then save the Prop 8 campaign people for later?